State of New South Wales v JC (No 3)

[2017] NSWSC 1181

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v JC (No 3) [2017] NSWSC 1181

Hearing dates:

1 September 2017

Date of orders:

01 September 2017

Decision date:

05 September 2017

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006, the Defendant be detained under an interim detention order from 1 September 2017 for a period of 5 days to Wednesday 6 September 2017 at 3:00 pm.

 

(2) Pursuant to s 20(1) of the Act, that the Court issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in paragraph (1) above.

 

(3) I stand the plaintiff’s notice of motion over to Tuesday 5 September 2017 at 10:00 am for further hearing before me.

 

(4) Access is not to be granted to the Court file except with leave from a judge of this Court, and following prior notice to the parties to enable each of them to be heard in respect of any such application.

(5) The defendant in these proceedings is not to be identified by name pursuant to the requirements and protections afforded to victims of various offences by virtue of s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act.

Catchwords:

HIGH RISK OFFENDER – serious sex offender – application for interim detention order

  JURISDICTION – application for interim detention order – second application – first application refused

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 5, 5D, 5I, 13B, 14, 15, 17, 18A, 18C, 18CB, 19
Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Crimes Act 1900 (NSW) ss 66A, 578A
Supreme Court Act 1970 (NSW) s 101

Cases Cited:

State of New South Wales v JC (No 1) [2017] NSWSC 1126

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
JC (Defendant)

Representation:

Counsel:
I Fraser (Plaintiff)
A Cook & D O’Neill (Defendant)

  Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid (Defendant)

File Number(s):

2017/239984

Publication restriction:

Pursuant to an order of this court, the name of the Defendant is not to be published.

Judgment

1. By way of notice of motion dated 31 August 2017 filed in court on 1 September 2017, the State of New South Wales (“the Plaintiff”) seeks orders against JC (“the Defendant”), including an order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the Defendant be detained under an interim detention order (“IDO”) from 1 September 2017 for a period of 28 days.

2. The notice of motion also seeks amendments to an extended supervision order (“ESO”) made by his Honour Justice Davies on 8 September 2011 by the addition of six conditions and an amendment to one of the existing conditions.

3. The application is urgent because the Defendant’s sentence expired on 28 August 2017 and he is in custody pursuant to an emergency detention order (“EDO”) made by Adamson J on 28 August 2017, due to expire at 3:05 pm, 1 September 2017.

4. These proceedings were commenced by way of a Summons filed on 7 August 2017 seeking, amongst other orders, an IDO and a continuing detention order (“CDO”) of 12 months.

5. Adamson J heard that application on 23 August 2017, and on 24 August made ancillary orders regarding medical examinations pursuant to s 15(4) of the Act but refused the application for an IDO. Her Honour noted that the ESO made by Davies J in 2011 would become operative on the Defendant’s release on 28 August 2017.

6. The matter was stood over to 9:00 am on Friday 1 September 2017 “for the hearing of any further application or for directions, as the case may be”.

7. It was not until 12:32 pm on 31 August that the Plaintiff served the Defendant’s legal representatives with the proposed notice of motion. The further affidavits in support of that notice of motion were served at 3:02 pm, and the written submissions at 5:06 pm.

The defendant’s response to the notice of motion

8. Concern was raised by the solicitor for the Defendant that the provision of the material so late did not give sufficient time for the substance of the application and evidence to be discussed with the Defendant, nor was it reasonable to expect instructions in response to it to be able to be obtained before the hearing listed for 9:00 am the following morning.

9. Despite this late service, counsel for the Defendant prepared a helpful outline of submissions and, subject to confirmatory instructions, narrowed the issues for consideration.

10. The Defendant’s primary position was that the Court does not have jurisdiction to hear a further application for an IDO, given that Adamson J declined to make an IDO on 24 August 2017. In the alternative, if the Court is of the view that there is jurisdiction to consider a further IDO application, the Defendant sought further time to obtain detailed instructions from the Defendant (given his developmental delay) and to prepare for hearing. It was submitted that proper hearing of the merits of the application for an IDO may well require cross-examination of the deponents of the affidavits, and detailed consideration of the submissions.

11. Given the concessions made on the Defendant’s behalf on 23 August which counsel for the Defendant informed the court were maintained for the purposes of this preliminary hearing, namely:

1. That the Defendant is a detained sex offender (for the purposes of s 13B) in respect of the application for an IDO and that the application has been made within time;

2. That the Defendant is a supervised sex offender for the purposes of s 5I in respect of the application for an interim supervision order (“ISO”);

3. That for the purposes of s 15(4), it is open to the Court to find that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO and appoint two psychiatrists to conduct assessments on the Defendant; and

4. That the Defendant is a high-risk sex offender such that the Court would make an ISO or IDO,

the Defendant did not oppose a short IDO conditional upon an early hearing date for the hearing of the notice of motion including, if necessary, cross-examination of the deponents of the new affidavits.

12. For the reasons set out in this judgment, I made an IDO for a period of 5 days commencing at 3:05 pm on Friday 1 September 2017 and expiring at 3:00 pm on Wednesday 6 September 2017. I set the matter down for further hearing before me at 10:00 am on Tuesday 5 September 2017.

Evidence tendered in support of the notice of motion filed in court on 1 September 2017

13. Further affidavits were tendered by the Plaintiff in support of its notice of motion as follows:

• Danielle Matsuo, affirmed 1 September 2017.

• Matthew Frize, affirmed 1 September 2017.

• Ellen Joy McCarroll, sworn 31 August 2017.

14. Reliance was also placed upon the following affidavits and material that had been tendered on the earlier application:

• An affidavit of Kenny Ng, affirmed 7 August 2017 together with a volume of exhibits to that affidavit.

• An affidavit of Karen Langdon, affirmed 11 August 2017.

• An affidavit of Karen Langdon, affirmed 18 August 2017.

• An affidavit of Samuel Ardasinski, sworn 4 August 2017.

• An extract from the OIMS records in relation to the Defendant, pages 475-494.

15. In relation to the tender of the new affidavits, the Defendant reserved his position but had no objection to me reading those for the purposes of determining the necessary matters relevant to the short IDO and to determine the question of the Court’s jurisdiction to entertain a further IDO application.

Relevant legislation

16. The objects of the Act are set out in s 3 as follows:

3   Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

17. Section 13B provides that an application for a CDO may only be made in respect of a detained sex offender or a supervised sex offender. The initial application by way of summons was filed on 7 August 2017, and at that time the Defendant was a detained sex offender in custody serving a sentence for serious sex offences.

18. Section 14 makes provision for the documentary requirements with respect to an application for a CDO and s 15 sets out the pre-trial procedures, including the requirement that psychiatric and/or psychological examinations be appointed (subs (4)) if the supporting documentation would if proved justify the making of a CDO. (These orders for examinations were made by Adamson J on 24 August 2017).

19. Section 17 relevantly provides:

17 Determination of application for continuing detention order

(1) The Supreme Court may determine an application under this Part for a continuing detention order:

(a) by making an extended supervision order, or

(b) by making a continuing detention order, or

(c) by dismissing the application.

(2)–(3A) (Repealed)

(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a) the safety of the community,

(b) the reports received from the persons appointed under section 15(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender continuing detention order) or serious violence offences (in the case of an application for a high risk violent offender continuing detention order),

(j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order—the nature of the failure to comply with those requirements and the likelihood of further failures to comply,

(k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender—whether circumstances have altered since the making of the order and whether those altered circumstances mean that adequate supervision cannot be provided under an extended supervision order or an interim supervision order.

(4A), (4B) (Repealed)

(5) In this section, a relevant offence means:

(a) in the case of an application for a high risk sex offender continuing detention order—a serious sex offence, or

(b) in the case of an application for a high risk violent offender continuing detention order—a serious violence offence.

20. As observed by Adamson J in State of New South Wales v JC (No 1) [2017] NSWSC 1126 at [44], it is necessary to briefly survey the requirements of s 17(4) to the extent relevantly applicable to be satisfied that there are bases established, if proven at final hearing, to make a CDO.

21. It is worth noting for the purposes of the argument regarding jurisdiction to entertain a further application for IDO that s 17(4)(k) clearly contemplates an application being made for a CDO in circumstances where it becomes apparent that adequate supervision cannot be provided under an ESO or ISO.

22. Section 18A relevantly provides:

18A   Interim detention order—high risk sex offender

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)   that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)   that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order.

23. Section 19 provides that any detention order may be varied or revoked:

19 Detention order may be varied or revoked

(1)   The Supreme Court may at any time vary or revoke a continuing detention order, interim detention order or emergency detention order on the application of the State or the offender.

(1A)   The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.

(1B)   Without limiting the grounds for revoking a continuing detention order, interim detention order or emergency detention order, the Supreme Court may revoke a continuing detention order, interim detention order or emergency detention order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

(2)   For the purpose of ascertaining whether to make an application under this section in relation to a continuing detention order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

(3)   The report must indicate whether the Commissioner considers the continuation of the continuing detention order to be necessary and appropriate.

Background facts

24. The Defendant was born in 1986 into an extremely dysfunctional family where he was exposed to a culture of continuous sexual abuse. In 2007, he was convicted of an offence under the Crimes Act 1900 (NSW) s 66A, which qualifies as a serious sex offence for the purposes of the Act s 5. He was sentenced on 19 June 2007 to 4 years imprisonment and was released on 18 June 2011. Between April 2011 and August 2013, the Defendant was released initially on parole and subsequently to be managed under an ESO made by Justice Davies on 1 September 2011. Pursuant to arrangements set up and managed by the Community Justice Project (“CJP”), he lived at a place called Mercy Centre, and was provided with comprehensive 24-hour line of sight supervision.

25. In July 2013, the Defendant wrote a letter to his therapist which contained multiple admissions of sexual assaults he had committed when he was a child. These details were provided to the police and, on 29 August 2013, he was taken into custody in relation to those charges, some of which he admitted and others which he denied but were, after police investigation, found to be true.

26. He also provided a journal to his therapist on 31 July 2013 which set out in numbered paragraphs in addition to details of sexual assaults he had committed, thoughts about sexually assaulting particular people, mainly children, and some identified adults, “killing and raping little girls and boys” and killing and eating particular identified children and adults. There are sixty-seven “thoughts about sexually assaulting people”. Here are four examples:

• “I’ve had thoughts of killing all the clients in the house and staff. Then going to the staff’s place and killing the staff’s wives and taping there [sic] dead wives and kids to [sic] but not killing the kids but didn’t do it no guts to [sic].”

• I’ve had thoughts of me wanting to kill the two staff that are on a particular night as in a male and female staff then raping the female staff member. Then going to kidnap a little girl and boy going out in bush and raping them then travelling at night. But I didn’t do it I have no guts to [sic].

• I’ve had thoughts of wanting to kill and rape little boys but I didn’t do it because I have no guts to do it [sic].

• I have thoughts of me pretending that I’m having sex with a little girl and boy and adults in bed every morning and night.

27. In August 2013, the CJP that had been managing the supervision of the Defendant advised Corrective Services that it proposed to withdraw provision of accommodation to the Defendant because of what he had written and the risk to staff, but his arrest intervened and the Defendant has been in custody since that time.

28. There were various opinions placed before the sentencing Judge in August 2015 that are relevant. Mr Sheehan, Senior Forensic Psychologist stated in his report dated 6 August 2013:

In my provisional views, [JC’s] case is best seen as coalescence between polymorphous paraphilia and obsessive compulsive disorder. That is, his paraphilic interests are experienced through obsessive and compulsive behaviour. The paedophilic interest reported historically would appear to have branched out into other forms of deviancy, including bestiality, necrophilia, mysophilia and vorarephilia. This polymorphous deviancy has become obsessive and associated with compulsive behaviours (such as sniffing bathroom seats). I would hypothesise that in much the same way some people with obsessive compulsive disorder become obsessed with thoughts of cleanliness and washing behaviour, [JC] is obsessed with matters relating to sexual deviancy. [JC’s] other vulnerabilities such as personality pathology, intellectual disability, and perhaps also his blood disorder may have all contributed to the severity, perseverance and treatment resistance of the presenting problems.

29. Subsequent to Mr Sheehan’s report, there was a pre-sentence report prepared by Sean Herford dated 8 February 2014. Mr Herford observed this in relation to the Defendant’s ability to obtain benefit from rehabilitation and treatment:

While [JC] generally remained compliant with the ESO, the intensity of his supervision has not decreased as originally planned due to ongoing high levels of sexual preoccupation and deviant sexual fantasies.

During his last custodial sentence, [JC] completed a specialist treatment program (self-regulation program) for sexual offenders with intellectual disabilities. He is reported to have made modest gains in that program but left prison with extensive ongoing sexual offenders specific treatment needs, the most pertinent of which were intrusive deviant sexual thoughts about children.

Since his release from custody, [JC] has received regular psychological intervention in the community through fortnightly sessions with a specialist psychologist. The psychologist has expressed concerns regarding the limited progress [JC] has made, and the effectiveness of a cognitive behavioural approach to treatment given his intellectual disability…

30. More contemporaneous to the sentencing and of particular concern to the sentencing Judge was the report of a psychologist, Dr Kate Seidler, dated 15 February 2015, which stated:

[The Defendant] is considered to pose a high risk of re-offence … It is likely that those vulnerable to [the Defendant] will be varied and include both males and females, especially those that are objectively vulnerable and to whom he has access. Further to this, [the Defendant] is likely to re-offend both in an impulsive and opportunistic manner, in addition to that which is organised and planned. Thus, his modus operandi and choice of victim will vary, which will make him a management challenge in the community … Despite [the Defendant’s] claims to the contrary, I have concerns about his capacity to regulate himself and address his deviant thinking and to this end, his risk would likely be intermittent in the community and difficult to control without external management..

31. The Defendant, in effect, pleaded guilty to all charged offences and was sentenced on 24 August 2015 by Judge Toner QC for an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years. A number of the offences qualify as “serious sex offences” for the purpose of s 5 of the Act. The sentencing Judge found that the Defendant had significant mental disabilities, porphyria and paedophilia. The sentencing Judge expressed significant reservations about the ability of the Defendant to be rehabilitated given his psychiatric conditions.

32. Since August 2015 the Defendant has remained in custody. He has attended some programs with limited progress, but there is little available in custody for him to suit his complex needs according to Dr Ardasinsky. He has not offended whilst in custody.

Affidavit evidence relied upon in support of notice of motion

(i)   Kenny Ng

33. This affidavit, affirmed by the solicitor with carriage of the matter on behalf of the Plaintiff, exhibits various formal notices and extracts from documents obtained in response to s 25 notices to Corrective Services, Family and Community Services, Justice Health, New South Wales Police, Office of the Children’s Guardian, Office of the Director of Public Prosecutions, Serious Offenders Review Council, State Parole Authority, and Victims’ Services.

34. Within that exhibit, OIMS case notes make various references to consultations with “the psychiatrist” or “a psychiatrist” which shows at different times the Defendant has been commenced on medication. For example, in June 2016, he was placed on Olanzapine (5 mg, twice daily) for intrusive thoughts, and also Fluoxetine. There is also mention in the notes that antilibininal therapy has been determined to be inappropriate given the Defendant’s psychiatric co-morbidities, in particular his OCD.

(ii)   Danielle Matsuo

35. Ms Matsuo is a registered psychologist who is currently Director of Statewide Programs, with Corrective Services New South Wales. She deposes to the exigencies of the risk assessment conducted of the Defendant, the appropriateness or otherwise of placing the defendant in a COSP (“Community Offender Support Program”) and the risk he poses to other residents in such a setting, a possible treatment plan, and risks associated with the defendant being placed in accommodation with adults who have been victims of previous sexual violence, given his propensity to articulate his fantasies of sexual abuse of children.

(iii)   Karen Langdon – 11 and 18 August 2017

36. Ms Langdon is the unit leader of the ESO Team. She deposes to the fact that to her knowledge, there has no suitable post-release accommodation for the Defendant as at 6 August, and outlines her review of relevant parts of concern within the OIMS notes and the history of accommodation with CJP Mercy Centre in Coffs Harbour. She deposes to efforts as early as 2014 to source appropriate accommodation for the Defendant’s release from custody. Accommodation assessed included the Defendant’s mother’s home which was assessed to be unsuitable. A particular proposed accommodation in Tarlo was also assessed and found to be unsuitable due to its lack of security and other identified factors.

(iv)   Dr Ardasinski – Psychologist

37. In June 2017, the Defendant was assessed by Dr Ardasinski, Forensic Psychologist, who prepared a report dated 26 June 2017. In that report, addressing in particular the risks associated with the Defendant, Mr Ardasinski concludes:

[JC] has a diagnosed intellectual disability, as well as diagnoses of paedophilia and potentially other paraphilias and a form of Porphyria, a rare metabolic syndrome which has neuropsychological effects on his functioning. [JC] participated in a custody-based treatment for his sexual offending in 2010-2011, completing a program which catered to sex offenders with intellectual disabilities in CSNSW custody. He also then engaged in further psychological intervention with a private practitioner at his own cost while under supervision in 2011-2013.

[JC] was made subject to a three-year ESO towards the end of his sentence for his most recent serious sex offence in 2011, and was released to a highly secure community facility in Coffs Harbour, known as the Mercy Centre. He was eligible for placement in this facility by virtue of his diagnosed intellectual disability and his acceptance as a client of the Department of Family and Community Services’ CJP (ADHC) which catered to offenders with such impairments. He was largely compliant with the conditions of his ESO and placement; however he caused staff safety concerns due to his compulsive over-disclosure of violent and deviant sexual fantasy in his interactions with staff and his psychologist. As a result of staff safety concerns, the Mercy Centre considered evicting him in 2013. Around the same time, [JC] disclosed sufficient details of his historical sexual offences in a letter to his psychologist to warrant Police involvement and eventual arrest and charge. This resulted in a custodial sentence for these further juvenile offences, with his sentence due to expire on 28/8/17.

Whilst in custody, [JC] has been found unsuitable for further custody-based group cognitive-behavioural therapy (CBT)-based treatment, and his community-based psychologist has suggested that the best approach to target his problematic sexual behaviour would be through a behaviour modification program which is unavailable through NSNSW Psychology. His support service (CJP) has been involved in multi-agency case conferences to consider his intervention pathway, however to date no further direct intervention has been provided which would meet the standard described by his treating psychologist. CSNSW has been unable to provide same due to difficulties with intervention model proposed, which includes adequate and consistent staff resources to provide the intervention and monitoring. The CJP case managers have considered his placement options throughout [JC’s] time in CSNSW custody, and recent efforts to secure a placement have been fruitless, with no placements in suitable settings being available at the current time.

As [JC] nears the expiry of his current sentence, he therefore remains in custody as a high risk offender with extremely complex needs and inadequate options to meet these needs. He remains under considerations by the CJP; however he has no approved accommodation model to be released into.

While [JC’s] risk has not changed, this change in circumstance may indicate that this risk is no longer able to be managed adequately in the community on an ESO. If he is unable to be released to a similarly intensive accommodation model to that to which he was released in 2011 when his ESO commenced, the potential for repeat sexual offending may be increased by virtue of environmental factors alone.

38. Dr Ardasinski concluded that JC’s risk scenarios ultimately revolve around his contact with children, given he has groomed victims in the past, with the risk highest with female children aged 5 to 12. Dr Ardasinski concluded that JC continues to fall in the high-risk category of sexual and other criminal offending relative to other adult male sexual offenders and thus, given the offending has involved hands-on offending against young children, it appears likely that any future sexual violence would approach the threshold of a serious sexual offence as defined in the Act.

39. Dr Ardasinski referred to some internal mechanisms that have been exhibited by JC to avoid risky situations and that he has capacity to leave a situation if he perceives there is a risk that he would be left alone with a child placing him in breach of his ESO. He has developed some unsophisticated strategies for managing deviant arousal, for instance, covering his head with a jacket when driving past a school in order not to see young children about whom he can fantasise.

(v)   Matthew Frize

40. Mr Frize is the Manager of Clinical and Case Management Services for the CJP. His affidavit is significant in its outline of the process of obtaining suitable accommodation options for clients of the CJP and his analysis of each of the accommodation options and the reasons why none are suitable and or available for the defendant as at the time the affidavit was sworn, on 1 September 2017. He concluded that CJP would not be able to offer any accommodation as unsuitable for the Defendant, and the most that could be provided was emergency accommodation operated by Housing NSW with CJP “possibly providing some drop-in support”.

(vi)   Ellen Joy McCaroll

41. Ms McCaroll is the current Manager of the Metropolitan ESO Team. She sets out her background and her responsibility for the operational approval of accommodation for the Defendant should he be the subject of an ESO. She deposes to having reviewed Mr Ardasinki’s risk assessment report, and in light of that, assessed the adequacy of a proposed COSP, a particular property, and emergency housing by Housing NSW. She concluded that there was none suitable and the latter would be an inappropriate option for Defendant, and that such an option would present a risk to the community that the Defendant would reoffend. She deposed to the fact that Corrective Services cannot provide 24-hour active supervision to offenders who are not in a correctional centre, and that it is not a function of the ESO team to provide 24-hour active supervision to offenders.

Jurisdiction to entertain a further application for an interim detention order

42. The Defendant submitted that given Adamson J refused to make an IDO on 23 August 2017, it was impermissible to approach the Court with a further application for an IDO. It was submitted that the proper avenue for relief is an appeal to the Court of Appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW). The Act makes no provision for review or reconsideration of a refusal to grant an IDO and the Act envisages only a single preliminary hearing because of the language used in s 15 of the Act referring to “a” preliminary hearing and “the” preliminary hearing. It was submitted that the legislative scheme provides for the renewal of IDOs pursuant to s 18C(2), but not for multiple applications. This was contrasted with the provisions made in s 18CB for EDOs, where it is made clear that another EDO application can be made if there are altered circumstances, but there is no such provision regarding the making of a further IDO application because of altered circumstances.

43. In response, the Plaintiff submitted that there was new material which showed altered circumstances which justified and supported an IDO being made and that this material was not available to Justice Adamson. There is no statutory preclusion to a further IDO application. The primary position of the Plaintiff is that this is a fresh IDO application and should be considered accordingly. There was no appeal from the decision of Justice Adamson because there was no error given the evidence she had before her at the time. The evidence of Mr Frize now available showed that the current position was that the Defendant could not be released on an ESO because there was no accommodation that was available presently that would provide the necessary level of vigilant 24-hour supervision.

Decision

44. The structure of the legislation, and in particular the objects of the Act, indicate that primacy must be given to ensuring the safety and protection of the community from the risk presented to it by the release of high risk offenders. The structure of the legislation clearly contemplates that there will be circumstances where the risk to the community associated with high risk sex offenders (and high risk violent offenders) may change. Section 5D provides relevantly for CDOs for high risk sex offenders where the Supreme Court is satisfied that adequate supervision will not be provided by an ESO.

45. As part of the machinery of the Act, and given the time delays associated with obtaining the necessary updated psychiatric and/or psychological evaluations, IDOs can be made pursuant to s 18A where, in proceedings on an application for a CDO, it appears to the Court:

1. That the offender’s current custody, if any, will expire before proceedings are determined; and

2. That the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO or a high risk offender CDO.

46. Section 17(4)(k) also clearly contemplates a situation where altered circumstances since the making of an ESO (or ISO) against the offender mean that adequate supervision cannot be provided under an ESO or an ISO, thus providing a relevant ground for pursuit of a CDO. Accordingly, there may be situations where, on the way to gathering relevant evidence so the Court can consider the making of a CDO because of changed circumstances, an IDO may have to be made.

47. It is clear that the legislation is addressing the dynamic nature of an offender’s psychological or psychiatric state, their compliance with any obligations to which they are subjected, and information that becomes available regarding the likelihood the offender will commit serious offences of a sexual nature as predicated by the considerations set out in s 17.

48. Section 18C, which deals with the term of an IDO, provides as follows:

18C Term of interim detention order

(1)   An interim detention order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(2)   An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

49. It is evident from that wording that so long as an IDO does not, including renewals, exceed a period of 3 months, there is no provision precluding the making of more than one application for an IDO. There is also clear provision in s 19(2) for the revocation or variation of an IDO so if suitable accommodation for an appropriate ESO does become available, an application can be made.

50. I am satisfied that the Court has jurisdiction to entertain a further application for an IDO. There is no abuse of process associated with the making of the further application. Further affidavit evidence that was not available upon the application made and determined by Justice Adamson on 24 August 2017 has been tendered and it is consistent with the legislative scheme that I make a determination based on all the evidence before me on 1 September 2017.

Discretion to make an interim detention order for a high risk sex offender

51. Section 18A provides the discretion to make an order for the interim detention of an offender if certain criteria are met. Counsel for the Defendant conceded that for the purposes of a short term IDO, the criteria in s 18A are met. There still remains however a discretion to make or refuse to make such an order.

52. I am persuaded by the material set out in paragraphs [25] to [41] of this judgment that it is appropriate to make an order for the interim detention of the Defendant for 5 days. Not only is there, as evidenced in the affidavit of Mr Frize, a lack of suitable identified accommodation, but I do not have before me any current psychiatric assessments that would assist me in determining the current risks of the Defendant acting upon any of the thoughts and preoccupations he has articulated in the past regarding the abduction and sexual assault of small children, the “raping” of girls and boys and female staff members, the killing and having sexual intercourse with various identified persons, and what, if anything, can currently be done to assist the Defendant undertake rehabilitation that will have any effect on his proclivities. In the past, the Defendant has acted opportunistically to sexually assault small children both known and unknown to him.

53. The thorough report of Dr Ardasinski from June 2017 highlights the difficulties presented by the combination of the Defendant’s intellectual disabilities, psychiatric disorders, and the complexities associated with his supervision needs.

54. Given the primary object of the Act is to “provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community”, it appears to me that on the evidence available as at 1 September 2017 those objects are served by the granting of an IDO.

55. This should not be taken as an indication that I or any other judicial officer will necessarily make further IDOs, nor does this dictate the ultimate outcome of the CDO application filed on 7 August 2017. The affidavit of Mr Frize is to the effect that accommodation availability is a dynamic matter and availability of a suitable place can change. It does not appear to be a situation of priority based on release or ESO date. Accordingly, the Plaintiff has an obligation to continue to pursue suitable supervised accommodation for the Defendant.

Orders

1. Pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006, the Defendant be detained under an interim detention order from 1 September 2017 for a period of 5 days to Wednesday 6 September 2017 at 3:00 pm.

2. Pursuant to s 20(1) of the Act, that the Court issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in paragraph (1) above.

3. I stand the plaintiff’s notice of motion over to Tuesday 5 September 2017 at 10:00 am for further hearing before me.

4. Access is not to be granted to the Court file except with leave from a judge of this Court, and following prior notice to the parties to enable each of them to be heard in respect of any such application.

5. The defendant in these proceedings is not to be identified by name pursuant to the requirements and protections afford to victims of various offences by virtue of s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act.

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Amendments

05 September 2017 - Corrected typographical errors.

Decision last updated: 05 September 2017